The global growth of the direct-to-home (DTH) satellite television industry is well documented. Nigeria is certainly one of the countries where such growth is evident and there are at least four major satellite TV service providers competing in the Nigerian market. In addition, there is a small but growing number of satellite TV enthusiasts who are exploring the opportunities available to watch satellite TV broadcasts without a subscription. In general, there tends to be a widespread misconception among the general population that satellite television is automatically equivalent to subscription television, ignoring the fact that there are a considerable number of free (FTA) broadcasts available without subscription. It should also be mentioned, however, that some of the enthusiasts deviate from simple free-to-air television beyond the realms bordering on illegality, depending on the circumstances, with the use of some satellite receivers with modified software to view encrypted material without subscription. .
The issue of legality regarding the transmission and reception of satellite television in Nigeria is a topical issue at present in light of litigation before the Nigerian courts involving some of the DTH operators in the market and other parties. , especially some cable television service providers. Typically, the DTH operator has paid a lot of money for premium content (a good example is English Premier League (EPL) football) and wants to protect its revenue stream by avoiding or preventing its dilution as a result of the activities of those that seek to broadcast the same content independently of DTH. This is especially true when the DTH operator has paid for the exclusive rights. Broadcasting, independent of the DTH operator, is usually handled by a few cable service operators who often obtain the content via satellite and rebroadcast it on cable to their own customers for a fee. In this sense, the main legal question is whether those who distribute such content independently of the DTH operator have the legal right to do so. The ongoing litigation in Nigerian courts between Hi-Media (HiTV operators) and CTL (a cable service provider) typifies the scenario described here.
Obviously, when encrypted satellite signals are obtained from the facilities of a DTH operator with exclusive national rights and are redistributed for a fee nationwide without the authorization or consent of the DTH operator, the retransmission is most likely to be a Illegal violation of the operator’s intellectual property rights. DTH operator. However, Nigerian law is not entirely clear on the question of the legality of retransmission of satellite signals within Nigeria when the signals are broadcast from outside the receiving country, by an operator that does not have national broadcasting rights and , especially, when the FTA signals are transmitted without encryption. This scenario is also unfolding in Nigeria with the recent complaints filed with the Nigerian authorities by some DTH operators from the Middle East and North Africa (MENA), especially Orbit Showtime about the rebroadcasting of their signals by some DTH operators. cable in Nigeria. In fact, the issue of the retransmission of FTA signals is a constant subject of controversy and legal uncertainty in other countries, particularly in Europe. For example, there was a recent crackdown in Spain against ‘illegal’ broadcasters. However, the crackdown appears to have focused on operators rebroadcasting encrypted content without authorization, while it appears that operators rebroadcasting FTA signals have largely been able to continue operations as long as they comply with the law in other respects. such as basic license requirements and tax responsibilities.
With regard to the situation in Nigeria, the issues ultimately revolve around issues of interpretation and application of Nigerian customary law and a number of Nigerian laws, including the Copyright Amendments Act. Obviously, it is very likely that the courts will rule that the holder of the national rights to a particular content (exclusive rights in the case of EPL football) can challenge and restrict any rebroadcasting of their own signals without their content or authorization. It is a different matter if the broadcast signal for that same content has been obtained from a different source. for example, a foreign EPL football broadcaster rather than the domestic rights holder. However, in such a case, the national rights holder with exclusive rights can successfully rely on the exclusivity of his own rights, regardless of the source from which the broadcaster obtained the signal. Potentially, the foreign rights holder may also claim infringement of their own intellectual property rights.
The least clear legal situation concerns rebroadcasting in Nigeria of FTA content broadcast or originating in a foreign country. From a broader perspective, there have always been at least two views of this situation. First, there is a view that as long as the national broadcaster has a proper broadcasting license and complies with other relevant laws, rebroadcasting of FTA content is acceptable. Some argue that this explains the activities of some operators in some European countries, eg Spain, Switzerland, etc., where retransmission of signals from another country, especially the UK, is a well-known phenomenon. The second opinion is that retransmission of FTA content without the authorization of the (foreign) origin at least must always be illegal if it isn’t already. Of course, rebroadcasting involves taking advantage of the author’s intellectual property, but other considerations are also taken into account, such as the author himself might be geographically restricted in terms of his broadcasting rights and the advertisements may be targeted to a particular country.
It is believed that the ongoing litigation before the Nigerian courts does not directly touch the issue of rebroadcasting in Nigeria of foreign-originated FTA signals. The Nigerian courts are expected to clear up the matter as soon as possible.
